Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister. In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome. The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.

In their legal advice, Alan Boyle and James Crawford take the view that the remainder of the UK would continue the legal personality of the UK, whereas Scotland would be a new state. As such, it would need to seek admission to international organisations and the European Union. Whereas Scotland would in their view need to apply to become a member of the Council of Europe, the European Convention on Human Rights would continue to apply to Scotland. However, they recognise that there is considerable uncertainty about the effect of Scottish independence on the rights under the EU treaties of UK citizens who would become Scottish nationals in the period (potentially drawn out) while Scotland negotiates its accession to the European Union. In Rottmann, the Court of Justice of the European Union took the view that EU citizenship, as a derivative add-on to the nationalities of member states, might significantly constrain the power of EU member states to strip their nationals of nationality where the result would be to render them stateless and losing their rights under the EU treaties.

Scotland would be the first case of state succession governed by complex a interplay of international and European Union law (in particular EU citizenship and fundamental rights). Which was the law deemed to apply to particular questions would be crucial factor in working out the legal implications. It seems clear that unilateral Scottish independence would be a legal nightmare, or legal bonanza for the lawyers, depending on how one looks at it. It would also leave important decisions about the future arrangements between Scotland, the UK and the European Union in the hands of potentially a multitude of different courts and tribunals that might reach inconsistent results. Should the Scottish people vote for independence, only independence prior to independence would avoid years of uncertainty and litigation. On this crucial point, the international lawyers and the economists agreed. Negotiations, with respect to currency arrangements and all of the complex legal issues raised by Scottish independence, would offer the only sensible way forward.

4 Responses

The legal opinion of James Crawford and Alan Boyle correctly acknowledges that with regards to a future independent Scotland’s EU membership there is no precedent. The opinion also draws attention to the fact that the status of both the rUK and Scotland after independence will be determined by agreements between the respective governments and the willingness of the international community to accept such agreements.

It is therefore clear that the question of Scotland’s future membership of the EU will be resolved politically and require extensive negotiations. According to the legal opinion, it is most probable that Scotland will begin life as a new state following independence and as a result have to apply for EU membership through the accession procedure set out in article 49 TEU. Taking this to be the most likely position, the following should be considered:

1.) The Scottish government has proposed that “independence day” following a yes vote in the 2014 referendum will take place around March 2016. Presumably Scotland will continue to be a part of the UK, and thus remain within the EU, during this transitional period. However, it is within this period that all relevant negotiations concerning Scotland’s EU membership will have to take place if the aim of a seamless transition to independence and EU membership is to be achieved on independence day 2016. Article 49 TEU provides that any “European State” may apply for membership. As Aidan O’Neill has already pointed out, it is questionable whether Scotland may be considered a European State for the purposes of article 49 TEU during the 2014-2016 transitional period. In the unlikely event that Scotland was not considered to be a European state, any negotiations on EU membership would have to be put on hold until after 2016 with the result being a period of time in which an independent Scotland would not be an EU member state.

2.) The Scottish government is adamant that a future independent Scotland would continue to benefit from all opt outs and concessions currently granted to the UK and would therefore not be required to join the Euro. In contrast, the EU treaties are unequivocal in stating that any newly admitted member state must enter the Eurozone. This clear legal obligation, coupled with fact that the Scottish government has proposed a relatively short time frame between a yes vote and independence day, would suggest that membership conditions such as the Euro may be non-negotiable. This may be especially true if one takes the view that it is essential for Scotland to be an EU member state come Independence Day 2016. Insistence upon opt outs are likely to be unsuccessful from both a legal and a political perspective and would risk prolonging negotiations well beyond March 2016.

3.) David Cameron recently promised the UK electorate an in/out referendum on EU membership if he wins a majority at the next general election in 2015. If the people of Scotland vote in favour of independence in 2014 it is unclear whether they will also be given a say on Scotland’s EU membership. At present, both sides in the independence debate disagree over whether Scotland would retain EU membership while at the same time seeming to agree that EU membership is desirable. In light of a potential UK wide referendum on EU membership, it would certainly be of concern to some if Scotland began life as an independent state, complete with EU membership, without ever consulting the Scottish people on the matter.

Furthermore, a vote in favour of leaving the EU by the population of what would then be the UK minus Scotland would certainly call into question the attractiveness of an independent Scotland’s continued EU membership.

With so much uncertainty surrounding the issue of Scottish independence it is no surprise that the vast majority of comment and analysis to date has engaged in a high degree of guesswork. The great value in the recently published legal opinion of Crawford and Boyle therefore is that it provides an overwhelming body of evidence in support of the proposition that an independent Scotland would begin life as a new state. It is hoped that all sides to the debate will at least begin any future speculative efforts from this starting point. The 3 issues I have raised above are my first attempt at doing just that.

Various parliamentary and extraparliamentary methods were adopted by Tamils to get devolution of power till 1976 when they began to ask for separation as solution. Aother pogrom was unleashed on them in 1977 when overwhelming majority of Tamils voted in parliamentarians asking for separation. …..

Reply to selvartnam – if I understand the selvaratnam’s claim, his basis is on ethnic mal-treatment within the country to be treated as a ground for succession. This is very unlikely. In that case should Muslims in Birmingham, blacks in 1950s USA, or various ethnic groups in India has a right to claim succession by presenting evidence like selvaratnam did.

Scotland is a separate country from the beginning, and right to succession is as between recognized states, and not within cultural entities of one country.

About the Author(s)

Michael Waibel

Michael Waibel is a University Lecturer at the University of Cambridge. Read Full